When Rick Santorum ran for president, people asked if I was offended as a gay man. My reply, “No, I’m offended as a Pennsylvania native.” Similarly, the Supreme Court arguments on marriage equality didn’t upset me as a gay man, but the suspicious use of data offended me as a scientist.
Let’s start with Justice Scalia, who suggested “there’s considerable disagreement among sociologists” about the effects of same-sex parenting. He makes it sound like American sociologists are duking this out in the literature. They aren’t. The American Sociological Association (ASA), who would seem to be something of an authority on the matter, report that the “clear and consistent consensus in the social science profession is that … children fare just as well when they are raised by same-sex parents.”
If Scalia knows two sociologists who argue vehemently about the matter, I suppose we could consider his comment only misleading. Otherwise, it’s either negligent or a fabrication. He can’t plead ignorance, as the ASA put that statement in their amicus brief on the case.
Justice Alito, on the other hand, warps data by changing the premise. “But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?” he decried in arguments.
Where to begin? First, it’s a little cyclical to say we can’t do something that’s banned because there is no data about what would happen if we do it, which we can’t, because it’s banned.
Further, same-sex marriages may be newer than cell phones and the Internet, but otherwise designated same-sex relationships have been not destroying society for quite a while. We allowed cell phones in part because of our positive experience with their precursors, the cordless and rotary phones. A similar optimistic deference seems fair for same-sex marriage. If Mississippi can survive soccer moms texting behind the wheel (which is as bad as drinking alcohol, BTW) it will surely survive the same-sex marriage. As for the Internet, anyone who thinks it represents a safe and well-thought out plan for spreading information without risk hasn’t been hacked and hasn’t been paying attention.
Indeed, one of the ironies is that the same justices would never require unproven medications or technologies to meet the standards they are setting for marriage equality. Those ventures are either assumed to be innocent, or are presented with safety criteria they must meet.
It’s telling that none of the justices bemoaning the novelty of same-sex marriage laid out a point at which they would be swayed by the data. Fifteen states? One million couples? Not marking the end zone is an invitation to move the goal posts.
Other justices wondered, either honestly or sarcastically, why we shouldn’t wait for more data from states acting as laboratories of democracy. That may seem tempting, but it’s a terrible idea because of something called reporting bias.
Put simply, you get the story the lab wants to tell, not the data you want to hear. Pharmaceutical companies rarely publish papers saying their drugs don’t work. States that don’t want marriage equality admitting the successes of same-sex couples is about as likely as a pharmaceutical company is to publish that their drug doesn’t work.
When there are so many barriers to good data, history can be instructive. When people discuss interracial marriage and Loving v. Virginia, no one says “Thank God we worked that out in the states!” Instead, we wonder why it took so long to treat people fairly.
So will it be with same-sex marriage. It doesn’t require more studies or state by state experimentation. It just requires at least five justices doing what they, and the voices of 40,000 California children, know is right.
